Gujarat High Court
Pokar Ram Verma S/O.Ajmeri Ram Verma vs Union Of India Thro Secretary To ... on 9 July, 2025
Author: A.S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/SCA/12238/2012 JUDGMENT DATED: 09/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.12238 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
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Approved for Reporting Yes No
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POKAR RAM VERMA S/O.AJMERI RAM VERMA
Versus
UNION OF INDIA THRO SECRETARY TO GOVERNMENT & ORS.
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Appearance:
HIMANSHI R BALODI(8919) for the Petitioner(s) No. 1
MR HARSHEEL SHUKLA For MR SHUSHIL R SHUKLA(5603) for the
Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MR.JUSTICE R. T. VACHHANI
Date : 09/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. The present petition is filed by the petitioner challenging the order dated 13.10.2011 passed by the learned Central Administrative Tribunal, Ahmedabad Bench in the Original Application No.79 of 2009.
2. The short issue involved in the present writ petition is as to whether the non-supply of the Advice of the Union Public Service Commission can be fatal to the punishment order passed against the present petitioner or not. At the outset Mr. M.S. Rao, learned advocate for the petitioner has submitted that the issue, which is considered in the decisions rendered by the Supreme Court in the cases of Union of India vs. S.K. Kapoor, (2011) 4 S.C.C. 589, Union of India vs. R.P. Singh, Page 1 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jul 25 2025 Downloaded on : Fri Jul 25 23:05:45 IST 2025 NEUTRAL CITATION C/SCA/12238/2012 JUDGMENT DATED: 09/07/2025 undefined (2014) 7 S.C.C. 340; and S.N. Narula vs. Union of India, (2011) 4 S.C.C. 591.
3. Today, the petitioner is more than 75 years of age. The petitioner was serving as a District Controller of Stores at Mahalaxmi Depot, Mumbai. The petitioner was issued a memorandum of charge on 22.06.2002 inter alia containing 9 (nine) charges relating to his alleged misconduct, which are as follows:
"Article 1 He failed to check scrap train lighting batteries, received from returning officer with Advice notes and also failed to inspect the same for correct valuation and accountal, thereby violated store code Para 1542 & 1611 Article 2 He as a depot officer failed to verify the quantity of scrap T.L. batteries reveived from the returning officer duly linking with forwarding documents. Like RR, Advice note etc. before accepting and accounting the same by himself or get it done through his subordidinates. Thereby violated store code para 1213 and 1610.
Article 3 He being the depot officer failed to advise the discrepancies in quantity of scrap T.L. batteries accounied for at depot and the quantity consigned as per RR/Advice notes, to the returning officer. He also failed to record the quantity accounted in the unit adopted by the consignor and in the units adopted by the store depot, & to record the reasons for the variation thereof, thereby violated store code para 1610.
Article 4 He failed to ensure proper receipt and distribution of Advice notes and also failed to ensure maintenance of depot Advice note register for recording receipt of Advice notes & scrap materials and thereby violated store code para 1543 & 1609.
Article 5 He failed to ensure the stock verification of scrap T.L. batteries after affecting delivery of lots sold to the purchasers by the accounts departments to adjust the discrepancies and to transfer the left over stock to the bins, thereby violated store cod para 2439.
Article 6 He sold a lot of scrap TL batteries in auction sale in wagons. Where as on the date of auction some of the wagons were not available in the depot premises and also disturbed the whole lot which ws sold before delivery of the material to the purchaser thereby violated store code pra2423.
Article 7 He as a depot officer failed to conduct surprise checks of deliveries, periodical Page 2 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jul 25 2025 Downloaded on : Fri Jul 25 23:05:45 IST 2025 NEUTRAL CITATION C/SCA/12238/2012 JUDGMENT DATED: 09/07/2025 undefined inspection of receipt register, Advice note register, wagon register etc. for prompt and correct acceptance and accountal of scrap material. Thereby failed to make effective monitoring and violated store code para 1221 and the stores instruction no. 923(B) of 13/3/90 issued by controleer of stores, W. Rly.
Article 8 He failed to ensure effective maintenance of stock stores, correct preparation and posting of all initial documents ledgers, bin cards and subsidiary registers thereby violated store code 1201.
Article 9 He in connivance with his subordinates and by the act of omission and commission given in para 1 to 8 has misappropriated a quantity of 216.965 MTs of scrap T.L. batteries valuing Rs. 35,14,833/- by short accountal and excess unrecorded deliveries to the purchaser by manipulating lots etc."
4. The petitioner denied all these charges while submitting his written reply on 12.07.2002. Thereafter, a regular inquiry was held under the provisions of the Railway Servants (Discipline & Appeal) Rules, 1968.
5. The Inquiry Officer, vide report dated 27.07.2003 concluded the inquiry wherein, the charge No. 1 was not proved, charge Nos. 2, 3, 5, 6, 7, and 8 were proved, and charge Nos. 4 and 9 were partly proved. Thereafter, it appears that the Disciplinary Authority disagreed with the findings of the charges, which were not proved. The General Manager, Railways, disagreed with the findings of the Inquiry Officer and issued a disagreement notice along with the Inquiry Officer's report.
6. The petitioner replied to the aforesaid notice by representation dated 19.07.2004.
7. The petitioner reached the age of superannuation on 30.06.2004 and thereafter, it appears that the entire papers of the disciplinary proceedings were sent to the President and after taking the detailed Advice, the UPSC tendered its Advice vide letter dated 05.05.2005 and sent it along with a punishment order dated 26.12.2005 imposing a penalty of 20% cut in pension on permanent basis.
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8. Mr. M.S. Rao, learned advocate for the petitioner has pointed out that the Advice of the UPSC, which was considered by the Disciplinary Authority was required to be sent in advance and not along with the punishment order. It is submitted that the punishment order dated 26.12.2005 categorically refers that a detailed Advice was given by the UPSC and accordingly, the same was also considered and the charges, which were partly proved, were converted as proved and hence, this has caused great prejudice to the petitioner and the same is in violation of principles of natural justice and is required to be quashed and set aside in view of the judgments of the Supreme Court, as referred to hereinabove
9. Learned advocate for the petitioner has also pointed out the findings of the Tribunal, in the order dated 13.10.2011 passed in O.A. No.79 of 2009 and has submitted that the Tribunal has rejected the O.A. by refusing to accept the aforesaid submissions only for the reason that the judgment, which was cited in the case of S.K. Kapoor (supra) was delivered on 16.03.2011 and hence, it should not have been considered by the Tribunal. Thus, it is urged that the judgment and order passed by the Tribunal may be set aside.
10. Per contra, learned advocate Mr. Shukla, for the respondents urged that the writ petition may be rejected as the impugned order is precisely passed. He has submitted that the judgment, on which reliance is placed, will not apply to the facts of the present case. Thus, it is urged that the petition may be rejected. It is further submitted that in case this Court observes to set aside the impugned final order dated 13.10.2011, the matter may be remanded to the Disciplinary Authority.
11. Heard the learned advocates appearing for the respective parties at length.
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12. The issue mentioned hereinabove is pertaining to non-supply of the UPSC Advice in advance by the Disciplinary Authority before imposing the punishment of cut in pension by 20% vide order dated 26.12.2005.
13. The foregoing noted facts are not in dispute. The Inquiry Officer vide report dated 27.07.2003 concluded the inquiry, wherein the charge No. 1 was not proved, charge Nos. 2, 3, 5, 6, 7, and 8 were proved, and charge Nos. 4 and 9 were partly proved. Thereafter, it appears that the Disciplinary Authority disagreed with the findings of the charges which were not proved. The General Manager, Railways, disagreed with the findings of the Inquiry Officer and issued disagreement notice along with the Inquiry Officer's report. The petitioner filed his representation. Meanwhile, the petitioner reached the age of superannuation on 30.06.2004. Accordingly, the Disciplinary Authority, by the order dated 26.12.2005, imposed a punishment of cut in pension on permanent basis of 20%. A bare perusal of the impugned order will reveal that while passing the aforesaid order of cut in pension on permanent basis of 20%, the Disciplinary Authority has specifically placed reliance on the Advice of UPSC, which was tendered vide letter dated 05.05.2005 and accordingly, the charges, which were partly proved, were held to be proved against the petitioner. This fact is not denied by the respondents.
14. It is not in dispute that the UPSC had tendered a detail Advice to the Department and the same is relied upon while passing the punishment order dated 26.12.2005 imposing cut in pension. At this stage, we may refer to the observations of the Supreme Court in the case of R.P. Singh (supra), wherein a similar issue, the Disciplinary Authority tendered the UPSC Advice, which was considered by the Disciplinary Authority along with the punishment order, has held thus:
Page 5 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jul 25 2025 Downloaded on : Fri Jul 25 23:05:45 IST 2025NEUTRAL CITATION C/SCA/12238/2012 JUDGMENT DATED: 09/07/2025 undefined "13 We will be failing in our duty if we do not take note of the submission of Mr.W.A.Qadri that the decision is not an authority because the tribunal had set aside the order of the Disciplinary Authority on the ground that it was a non-speaking order.
Be that as it may, when the issue was raised before this Court and there has been an advertence to the same, we are unable to accept the submission of Mr. Qadri. The said decision is an authority for the proposition that the Advice of UPSC, if sought and accepted, the same, regard being had to the principles of natural justice, is to be communicated before imposition of punishment.
14 In the case of S.K.Kapoor, the Court accepted the ratio laid down in the case of T.V.Patel as far as the interpretation of Article 320(3)(c) is concerned and, in that context, it opined that the provisions contained in the said Article 320(3)(c) of the Constitution of India are not mandatory. While distinguishing certain aspects, the Court observed as follows:
"7. We are of the opinion that although Article 320(3)(c) is not mandatory, if the authorities do consult the Union Public Service Commission and rely on the report of the commission for taking disciplinary action, then the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that he may have an opportunity of rebuttal. Thus, in our view, the aforesaid decision in T.V.Patel's case is clearly distinguishable."
15 After so stating the two-Judge Bench opined that when the Disciplinary Authority does not rely on the report of the UPSC then it is not necessary to supply the same to the employee concerned. However, when it is relied upon then the copy of the same may be supplied in advance to the employee concerned, otherwise, there would The violation of the principles of natural justice. To arrive at the said conclusion, reliance was placed upon the decision in S.N.Narula's case. Proceeding further, the Court held:
"9. It may be noted that the decision in S.N.Narula's case (supra) was prior to the decision in T.V.Patel's case(supra). It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N.Narula's case (supra) was not noticed in T.V.Patel's case(supra), the latter decision is a judgment per incuriam. The decision in S.N.Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."
16 Learned counsel for the appellant would contend that the two- Judge Bench in S.K. Kapoor s case could not have opined that the decision in T.V. Patel s case is per incuriam. We have already noticed two facts pertaining to S.N. Narula (supra), (i) it ws rendered on 31.1.2004 and (ii) it squarely dealt with the issue and expressed an opinion. It seems to us that the judgment in S.N. Narula s case was not brought to the notice of their Lordships deciding the lis in T.V. Patel (supra). There cannot be a Page 6 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jul 25 2025 Downloaded on : Fri Jul 25 23:05:45 IST 2025 NEUTRAL CITATION C/SCA/12238/2012 JUDGMENT DATED: 09/07/2025 undefined shadow of doubt that the judgment in S.N. Narula (supra) is a binding precedent to be followed by the later Division Bench. In this context, we may fruitfully refer to the decision in Union of India V/s. Raghubir Singh (dead) by L. Rs. And Others, (1989) 2 SCC 754, wherein the Constitution Bench has held as follows: "We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court"
17 In Indian Oil Corporation Ltd. V/s. Municipal Corporation and Another, AIR 1995 SC 1480, it has been observed that the Division Bench of the High Court in Municipal Corpn., Indore V/s. Ratnaprabha Dhandha, 1989 MPLJ 20, was clearly in error in taking the view that the decision of this Court in Municipal Corporation, Indore V/s. Ratna Prabha, (1976) 4 SCC 622, was not binding on it. In doing so, the Division Bench of the High Court did something which even a later co-equal Bench of this Court did not and could not do.
19 Thus perceived, it can be stated with certitude that S.N. Narula (supra) was a binding precedent and when the subsequent decision in T.V. Patel (supra) is rendered in ignorance or forgetfulness of the binding authority, the concept of per incurium comes into play.
20 In this regard, we may usefully refer to a passage from A.R. Antulay V/s. R.S. Nayak, (1988) 2 SCC 602, wherein Sabyasachi Mukharji, J. (as his Lordship then was) observed thus: -
"... Per incuriam are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
At a subsequent stage of the said decision it has been observed as follows: -
"... It is a settled rule that if a decision has been given per incuriam the court can ignore it."
22 Testing on the aforesaid principles it can safely be concluded that the judgment in T.V. Patel s case is per incuriam.
23 At this juncture, we would like to give our reasons for our respectful concurrence with S.K. Kapoor (supra). There is no cavil over the proposition that the language engrafted in Article 320(3)(c) does not make the said Article mandatory. As we find, in the T.V.Patel's case, the Court has based its finding on the language employed in Rule 32 of the Rules. It is not in dispute that the said Rule from the very inception is a part of the 1965 Rules. With the efflux of time, there has been a change of Page 7 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jul 25 2025 Downloaded on : Fri Jul 25 23:05:45 IST 2025 NEUTRAL CITATION C/SCA/12238/2012 JUDGMENT DATED: 09/07/2025 undefined perception as regards the applicability of the principles of natural justice. An Inquiry Report in a disciplinary proceeding is required to be furnished to the delinquent employee so that he can make an adequate representation explaining his own stand/stance. That is what precisely has been laid down in the B.Karnukara's case. We may reproduce the relevant passage with profit "Hence it has to be held that when the enquiry officer is not the Disciplinary Authority, the delinquent employee has a right to receive a copy of the enquiry officer s report before the Disciplinary Authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee s right to defend himself against the charges levelled against him. A denial of the enquiry officer s report before the Disciplinary Authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice."
24 We will be failing in our duty if we do not refer to another passage which deals with the effect of non-supply of the enquiry report on the punishment. It reads as follows: -
"[v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the [pic]concept of justice to illogical and exasperating limits. It amounts to an "unnatural expansion of natural justice" which in itself is antithetical to justice."
25 After so stating, the larger Bench proceeded to state that the court/tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished. The courts/tribunals would apply their judicial mind to the Page 8 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jul 25 2025 Downloaded on : Fri Jul 25 23:05:45 IST 2025 NEUTRAL CITATION C/SCA/12238/2012 JUDGMENT DATED: 09/07/2025 undefined question and give their reasons for setting aside or not setting aside the order of punishment. It is only if the court/tribunal finds that the furnishing of report could have made a difference to the result in the case then it should set aside the order of punishment. Where after following the said procedure the court/tribunal sets aside the order of punishment, the proper relief that should be granted to direct reinstatement of the employee with liberty to the authority/ management to proceed with the enquiry, by placing the employee under suspension and continuing the enquiry from that stage of furnishing with the report. The question whether the employee would be entitled to the back wages and other benefits from the date of dismissal to the date of reinstatement, if ultimately ordered, should invariably left to be decided by the authority concerned according to law, after the culmination of the proceedings and depending on the final outcome.
26 We have referred to the aforesaid decision in extenso as we find that in the said case it has been opined by the Constitution Bench that non-supply of the enquiry report is a breach of the principle of natural justice. Advice from the UPSC, needless to say, when utilized as a material against the delinquent officer, it should be supplied in advance. As it seems to us, Rule 32 provides for supply of copy of Advice to the government servant at the time of making an order. The said stage was in prevalence before the decision of the Constitution Bench. After the said decision, in our considered opinion, the authority should have clarified the Rule regarding development in the service jurisprudence. We have been apprised by Mr.Raghavan, learned counsel for the respondent, that after the decision in S.K.Kapoor's case, the Government of India, Ministry of Personnel, PG & Pensions, Department of Personnel & Training vide Office Memorandum dated 06.01.2014 has issued the following directions:
"4. Accordingly, it has been decided that in all disciplinary cases where the Commission is to be consulted, the following procedure may be adopted :-
(i) On receipt of the Inquiry Report, the DA may examine the same and forward it to the Commission with his observations;
(ii) On receipt of the Commission's report, the DA will examine the same and forward the same to the Charged Officer along with the Inquiry Report and his tentative reasons for disagreement with the Inquiry Report and/or the Advice of the UPSC;
(iii) The Charged Officer shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the Inquiry report/Advice of UPSC is in his favour or not.
(iv) The Disciplinary Authority shall consider the representation of the Charged Officer and take further action as prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA) Rules, 1965.Page 9 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jul 25 2025 Downloaded on : Fri Jul 25 23:05:45 IST 2025
NEUTRAL CITATION C/SCA/12238/2012 JUDGMENT DATED: 09/07/2025 undefined 27 After the said Office Memorandum, a further Office Memorandum has been issued on 05.03.2014, which pertains to supply of copy of UPSC Advice to the Charged Officer. We think it appropriate to reproduce the Same:
"The undersigned is directed to refer to this Department's O.M. of even number dated 06.01.2014 and to say that it has been decided, in partial modification of the above O.M. that a copy of the inquiry report may be given to the Government servant as provided in Rule 15(2) of Central Secretariat Services (Classification, Control and Appeal) Rules, 1965. The inquiry report together with the representation, if any, of the Government servant may be forwarded to the Commission for Advice. On receipt of the Commission's Advice, a copy of the Advice may be provided to the Government servant who may be allowed to submit his representation, if any, on the Commission's Advice within fifteen days. The Disciplinary Authority will consider the inquiry report, Advice of the Commission and the representation(s) of the Government servant before arriving at a final decision."
28 In our considered opinion, both the Office Memoranda are not only in consonance with the S.K.Kapoor's case but also in accordance with the principles of natural justice which has been stated in B.Karunakar's case."
15. Thus, the Supreme Court, after considering the judgments in the case of S.N. Narula (supra) and S.K. Kapoor (supra), has agreed with the decision rendered in S.K. Kapoor (supra) by holding that the Advice of the UPSC, which is relied upon by the Disciplinary Authority while imposing the punishment on the delinquent, is required to be supplied in advance. It is categorically recorded in paragraph No.14 that in case the Advice of the UPSC is relied upon, a copy of the same may be supplied in advance to the employee concerned, otherwise there would be violation of principles of natural justice. The Supreme Court has placed reliance on the judgment of S.N. Narula (supra). The judgment of the Supreme Court in S.K. Kapoor (supra) was also cited before the Tribunal however, curiously the Tribunal has refused to apply the ratio of the decision in the case of S.K. Kapoor (supra) only for the reason that the judgment of S.K. Kapoor (supra) was delivered by the Supreme Court on 16.03.2011, whereas the penalty order is passed on 26.12.2005. Thus, it appears that the Tribunal was not aware of the fundamentals of the Page 10 of 11 Uploaded by MR.MITESH VIJAYBHAI PANCHAL(HCD0065) on Fri Jul 25 2025 Downloaded on : Fri Jul 25 23:05:45 IST 2025 NEUTRAL CITATION C/SCA/12238/2012 JUDGMENT DATED: 09/07/2025 undefined applicability of legal precedents. Hence, in our opinion, since the issue in the present petition is squarely covered by the decision rendered by the Supreme Court, the judgment and order passed by the Tribunal dated 13.10.2011 in O.A. No.79 of 2009 deserves to be quashed and set aside. The same is hereby quashed and set aside.
16. We direct the respondents to accordingly revise the pension of the petitioner and also refund the amount, which has already been deducted from the pension of the petitioner. The said amount, along with the arrears, shall be paid to the petitioner within a period of 6 (six) weeks from the date of receipt of a certified copy of this order. We further clarify that in the event the amount is not paid, within the limitation as prescribed by us, the same shall carry further interest @ 9% per annum.
17. We may further clarify that as the petitioner has already retired way back in the year 2004 i.e. almost 21 years have passed hence, there would be no question of remanding the matter to the authority.
18. The writ petition is accordingly allowed. The impugned punishment order dated 26.12.2005, and the judgment and order dated 13.10.2011 passed by the Central Administrative Tribunal, Ahmedabad Bench in the Original Application No.79 of 2009 are quashed and set aside.
Sd/- .
(A. S. SUPEHIA, J)
Sd/- .
(R. T. VACHHANI, J)
MVP/7
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